No. 13-15-00063-CV

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT - AT CORPUS CHRISTI, TEXAS

MATHEW ALEXANDER, INDIVIDUALLY AND AS PRESIDENT OF 

THE SOUTH TEXAS BRAIN AND SPINE CENTER, 

Defendant-Appellant,

v. 

PEDRO LOMAS,

Plaintiff-Appellee. 

 

ON APPEAL FROM COUNTY COURT AT LAW NO. 3, NUECES COUNTY, TEXAS

CAUSE NO. 2012-CCV-61204-3

(HON. DEEANNE GALVAN)

PLAINTIFF-APPELLEE’S BRIEF

HILLIARD MUÑOZ GONZALES LLP

Robert C. Hilliard

State Bar No. 09677700

bobh@hmglawfirm.com

Catherine D. Tobin

State Bar No. 24013642

catherine@hmglawfirm.com

John B. Martinez

State Bar No. 24010212

john@hmglawfirm.com

T. Christopher Pinedo

State Bar No. 00788935

cpinedo@hmglawfirm.com

Marion Reilly

State Bar No. 24079195

marion@hmglawfirm.com

719 S. Shoreline Boulevard, Suite 500

Corpus Christi, TX 78401

Telephone No.: (361) 882-1612

Facsimile No.: (361) 882-3015

ATTORNEYS FOR PLAINTIFF-APPELLEE

ACCEPTED

13-15-00063-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

4/29/2015 3:24:04 PM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 4/29/2015 3:24:04 PM DORIAN E. RAMIREZ Clerk
ii

No. 13-15-00063-CV

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT - AT CORPUS CHRISTI, TEXAS

MATHEW ALEXANDER, INDIVIDUALLY AND AS PRESIDENT OF 

THE SOUTH TEXAS BRAIN AND SPINE CENTER, 

Defendant-Appellant,

v. 

PEDRO LOMAS,

Plaintiff-Appellee. 

ON APPEAL FROM COUNTY COURT AT LAW NO. 3, NUECES COUNTY, TEXAS

CAUSE NO. 2012-CCV-61204-3

(HON. DEEANNE GALVAN)

STATEMENT REGARDING ORAL ARGUMENT

This appeal involves clear facts and well-settled law. Together, they amply 

support the trial court’s denial of Defendant-Appellant’s second motion to dismiss. 

As a result, Plaintiff-Appellee believes that oral argument is not necessary to aid the 

decisional process or to expeditiously resolve this case. However, should the Court 

wish to hear oral argument, then Plaintiff-Appellee would welcome the opportunity to 

further articulate these issues. 
iii

TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................................... iii

INDEX OF AUTHORITIES ............................................................................................... v

STATEMENT OF THE CASE ....................................................................................... viii

ISSUES PRESENTED.......................................................................................................... ix

STATEMENT OF THE FACTS ........................................................................................ 1

STANDARDS OF REVIEW ............................................................................................... 6

I. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’S 

SECOND MOTION TO DISMISS IS REVIEWED FOR AN ABUSE OF 

DISCRETION ...................................................................................................... 6

II. THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF 

LAW ARE REVIEWED FOR FACTUAL AND LEGAL SUFFICIENCY OF 

THE EVIDENCE ................................................................................................. 7

SUMMARY OF THE ARGUMENT .................................................................................. 8

ARGUMENT .......................................................................................................................... 9

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN 

DENYING DEFENDANT-APPELLANT’S SECOND MOTION TO 

DISMISS .............................................................................................................. 9

A. Plaintiff-Appellee Timely Served an Expert Report on 

Defendant-Appellant Mathew Alexander within 120 Days 

of Filing His Amended Pleading Naming DefendantAppellant Mathew Alexander as a Party......................................... 10

1. The 120-day deadline to serve an expert report runs from the 

date that the Plaintiff first asserted a health care liability 

claim against the Defendant ........................................................ 10

2. Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) is inapposite 

and, if anything, supports Plaintiff-Appellee’s argument .............. 13
iv

3. The common law concept of misnomer does not apply ................... 14

B. Plaintiff-Appellee’s Service of His Expert Report was 

Timely Even Assuming the 120-Day Deadline was 

Triggered by the Filing of Plaintiff’s Original Petition ............... 17

II. THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO 

SUPPORT THE TRIAL COURT’S FINDINGS OF FACT AND 

CONCLUSIONS OF LAW .................................................................................. 20

CONCLUSION .................................................................................................................... 22

RULE 9.4(I) CERTIFICATION ...................................................................................... 23

CERTIFICATE OF SERVICE ........................................................................................ 23
v

INDEX OF AUTHORITIES

PAGE

UNITED STATES SUPREME COURT CASES:

Anderson v. City of Bessemar, 

470 U.S. 546 (1985) ..................................................................................................... 6

SUPREME COURT OF TEXAS CASES:

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 

46 S.W.3d 873 (Tex. 2001) ......................................................................................... 6

BMC Software Belgium, N.V. v. Marchland, 

82 S.W.3d 789 (Tex. 2001) ......................................................................................... 7

City of San Antonio v. Rodriguez, 

828 S.W.2d 417 (Tex. 1992) .................................................................................... 15

In re Greater Houston Orthopaedic Specialists, Inc., 

295 S.W.3d 323 (Tex. 2009) .............................................................................. 15, 16

Jaffe Aircraft Corp. v. Carr, 

867 S.W.2d 27 (Tex. 1993) ......................................................................................... 7

Ogletree v. Matthews, 

262 S.W.3d 316 (Tex. 2007) .................................................................................... 19

Shah v. Moss, 

67 S.W.3d 836 (Tex. 2001) ...................................................................................... 19

Stockton v. Offenbach, 

336 S.W.3d 610 (Tex. 2011) .............................................................................. 18, 19

Tenet Hospitals Limited v. Rivera, 

445 S.W.3d 698 (Tex. 2014) .................................................................................... 18

Walker v. Packer, 

827 S.W.2d 833 (Tex. 1992) ....................................................................................... 7
vi

Worford v. Stamper, 

801 S.W.2d 108 (Tex. 1990) ....................................................................................... 6

Yancy v. United Surgical Partners Int’l, Inc., 

236 S.W.3d 778 (Tex. 2007) .................................................................................... 19

Zanchi v. Lane, 

408 S.W.3d 373 (Tex. 2013) .............................................................................. 13, 14

Cf. Mark v. St. Luke’s Episcopal Hosp., 

52 Tex. Sup. J 1194 2009 Tex. LEXIS 636 at *12 (Tex. Aug. 28 2009)............ 12

TEXAS COURTS OF APPEALS CASES:

Buchinal v. PJ Trailers-Seminole Mgmt. Co., 

372 S.W.3d 200 (Tex. App.—Texarkana 2012, no pet.)...................................... 15

Cameron Cnty Drainage Dist. No. 5 v. Gonzales, 

69 S.W.3d 820 (Tex. App.—Corpus Christi 2002, no pet.) ................................... 7

Daybreak Comm. Servs., Inc. v. Cartrite, 

320 S.W.3d 865 (Tex. App.—Amarillo 2010, no pet.) .................... 10, 14, 16, 17

Hayes v. Carroll, 

314 S.W.3d 494 (Tex. App.—Austin 2010, pet. aff’d) ............................ 10, 11, 14

Kingswood Specialty Hosp., Ltd. v. Barley, 

328 S.W.3d 611 (Tex. App.—Houston [14th Dist.] 2010, pet. aff’d) ........ 10, 14

Lone Star HMA, L.P. v. Wheeler, 

292 S.W.3d 812 (Tex. App.—Dallas 2009, no pet.)....................................... 16, 17

Manzi v. State, 

88 S.W.3d 240 (Tex. Crim. App. 2002) (en banc) .................................................. 6

McAllen Police Officers Union v. Tamez, 

81 S.W.3d 401 (Tex. App.—Corpus Christi 2002, pet. dism’d)............................ 7
vii

McQuade v. Berry, 

No. 02-12-00099-CV, 2012 WL 6049012 (Tex. App.—Fort Worth 2012, 

no pet.) .......................................................................................................................... 6

Nexion Health at Beechnut, Inc. v. Paul, 

335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet.)................... 19

Osonma v. Smith,

No. 04-08-00841-CV, 2009 WL 1900404 (Tex. App.—San Antonio July 

1, 2009, pet. denied) (mem. op.) ................................................................. 10, 11, 12

Padre Behavioral Hlth Sys., LLC v. Chaney, 

310 S.W.3d 78 (Tex. App.—Corpus Christi 2010, no pet.) ................... 10, 11, 14

Pallares v. Magic Valley Elec. Coop., 

267 S.W.3d 67 (Tex. App.—Corpus Christi 2008, pet. denied) ........................... 7

Puri v. Mansukhani, 

973 S.W.2d 701 (Tex. App.—Houston [14th Dist.] 1998)............................ 20, 21

Schindler v. Schindler, 

119 S.W.3d 923 (Tex. App.—Dallas 2003, pet. denied)...................................... 21

Stroud v. Grubb, 

328 S.W.3d 561 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).10,14,16,17

Union Pacific Corp. v. Legg, 

49 S.W.3d 72, 78 (Tex. App.-Austin 2001, no pet.) ............................................. 16

STATUTES AND RULES:

Act of May 24, 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013 ............ 9, 13

Tex. Civ. Prac. & Rem. Code § 74.351(a) (Vernon 2011).............................. 9, 10, 11, 18

Tex. Civ. Prac. & Rem. Code § 74.351(b) (Vernon 2011) ................................................. 9

Tex. R. Civ. Prac. 21a...................................................................................................... 18, 20
viii

STATEMENT OF THE CASE

Nature of the Case: This is an interlocutory appeal challenging the trial 

court’s denial of Defendant-Appellant’s motion to 

dismiss in a medical malpractice case. The principal 

issue in this case is whether the trial court properly 

determined that Defendant-Appellant was not a 

named party to Plaintiff’s Original Petition and thus 

that the 120-day clock did not begin to tick until 

Plaintiff-Appellee filed his First Amended Petition. 

Trial Court: County Court at Law No. 3, Nueces County, Texas, 

Judge Deeanne Galvan presiding. 

Trial Court Disposition: The trial court determined that Plaintiff-Appellee

timely served a sufficient Chapter 74 expert report

within 120-days of filing his Amended Petition. 

(Supp. CR 18.) Thus, the trial court denied 

Defendant-Appellant’s operative motion to dismiss. 

(CR 401.) 
ix

ISSUES PRESENTED

Plaintiff-Appellee disagrees with the issues presented by Defendant-Appellant 

in its opening brief. This case involves two relatively simple issues:

I. Whether the trial court properly denied Defendant-Appellant’s second 

motion to dismiss after Plaintiff-Appellee served his expert’s report 

within 120 days of filing his Amended Petition wherein DefendantAppellant was named as a party to suit for the first time; and

II. Whether the trial court’s Findings of Fact numbers 3, 4, 5 and 8 and 

Conclusion of Law number 18 are legally and factually sufficient. 
1

STATEMENT OF THE FACTS

Mr. Lomas’ Surgeries 

 On June 25, 2010, Mr. Pedro Lomas underwent back surgery with Dr. 

Konasiewicz to repair damage caused by bulging, extruding, and desiccating discs in 

his spine and to correct moderately severe spinal stenosis and compression 

displacement. (CR 29.) Immediately after the operation, Mr. Lomas experienced 

intense pain in his lower back, leg, and foot. (CR 29.) Dr. Konasiewicz dismissed Mr. 

Lomas’ pain as “typical” post-operative pain and assured him it would soon disappear. 

(CR 29.) The pain, however, only worsened. (CR 29.) 

In each of his post-operative follow-up appointments, Mr. Lomas described 

numbness in his leg and sharp, excruciating pain in his foot. (CR 29.) The pain was 

so intense that Mr. Lomas could not sleep, work, or walk without using a walker. (CR 

29.) When Mr. Lomas, through tears, explained the depth of his pain to Dr. 

Konasiewicz, the doctor slapped him on his back and joked, “Well, but your back isn’t 

hurting anymore, is it?” (CR 29.)

Mr. Lomas later discovered that Dr. Konasiewicz severed one or more of Mr. 

Lomas’ nerves during surgery, resulting in Mr. Lomas’ constant pain, his inability to 

perform even the most routine activities, and his inability to walk without using a cane 

or crutches. (CR 30.) As a result of the botched surgery, Mr. Lomas is permanently 

disabled and unable to return to work in the oil field. (CR 30.) Mr. Lomas is a victim 
2

not only of Dr. Konasiewicz’s bad surgical technique, but also of Dr. Konasiewicz’s 

failure to either acknowledge or to appreciate Mr. Lomas’ post-surgical complaints 

and to act on them accordingly. (CR 30.) 

Little did Mr. Lomas know, Dr. Konasiewicz had a long history of medical 

malpractice. (CR 36.) Dr. Konasiewicz managed to attain a special infamy in 

Minnesota, and a simple internet search uncovers numerous articles dealing with the 

extent of his history of malpractice. See, e.g., J.G. Preston, “You’ve Paid $3 Million to 

Settle Malpractice Suits? Welcome to Texas, Podnah!”, 

http://www.protectconsumerjustice.org/youve-paid-3-million-to-settle-malpracticesuits-welcome-to-texas-podnah.html (last accessed April 17, 2015) (discussing how the 

brain surgeon has been sued for medical malpractice nine times and was involved in 

cases that have already led to more than $3 million in settlements to injured patients). 

In fact, as Plaintiff-Appellee alleges in his First Amended Petition, “Dr. Konasiewicz 

only practices in Corpus Christi to evade a reprimand from the Minnesota Board of 

Medical Practice, after a career at St. Luke’s Hospital in Duluth that left in its wake six 

patients seriously injured, two patients dead, and one patient paralyzed from the neck 

down.” (CR 31.) Dr. Konasiewicz’s surgical recklessness, coupled with his complete 

dismissal of patients’ complaints or concerns after their surgeries, results in more 

serious damage to the patients than their original conditions would have caused. (CR 

31.) Simply stated, Dr. Konasiewicz routinely leaves patients in worse condition than 

before he operated. (CR 31.) 
3

Dr. Konasiewicz’s past history was readily available when Dr. Mathew 

Alexander decided, together with his partner, to take on Dr. Konasiewicz as a partner 

at the South Texas Brain and Spine Center. (CR 31.) Either Dr. Alexander was aware 

of Dr. Konasiewicz’s sordid history and hired him despite its existence, or he failed to 

perform even the most rudimentary examination of Dr. Konasiewicz’s past before 

entrusting the health of patients to him. (CR 31.) In either event, Dr. Alexander and 

South Texas Brain and Spine represented Dr. Konasiewicz to their patients as a 

competent and safe doctor, and made no effort to inform them of his long history of 

medical malpractice. (CR 31.)

Mr. Lomas’ Lawsuit 

On June 19, 2012, Mr. Lomas filed his Original Petition and Requests for 

Disclosure. (CR 7.) In this Original Petition, Mr. Lomas did not name Dr. Mathew 

Alexander, Individually and as President of South Texas Brain and Spine Center 

(“Defendant-Appellant”) as a party to the suit. Plaintiff-Appellee did not assert a 

cause of action against Dr. Mathew Alexander in his Original Petition nor did 

Plaintiff-Appellee list Dr. Mathew Alexander as a defendant in the style of the case of 

his Original Petition. (CR 7.) Mr. Lomas amended his petition on June 27, 2012. 

(CR 27.) His First Amended Petition alleged, for the first time, facts and causes of 

action against Dr. Mathew Alexander and listed him as a defendant in the style of the 

case. (CR 27.) Dr. Mathew Alexander was never served with the Original Petition, 

only with the First Amended Petition where he was named as a party. (CR 7.) The 
4

trial court determined that “June 27, 2012 was the first time Plaintiff sued and 

brought a cause of action against Defendant Mathew Alexander.” (Supp. CR 17.) 

Mr. Lomas’ Service of His Expert’s Report 

The trial court determined that pursuant to Chapter 74 of the Texas Civil 

Practice and Remedies Code, Plaintiff-Appellee had 120 days from June 27, 2012 to 

serve Dr. Mathew Alexander with an expert report; 120 days from June 27, 2012 was 

October 25, 2012. (Supp. CR 17.) Mr. Lomas timely served his expert’s report, a 

report by Dr. Martin Barash, on Defendant Dr. Mathew Alexander, via facsimile on 

October 17, 2012, at approximately 6:28 p.m. (Supp. CR 18.) The trial court found 

that “Plaintiff had until October 25, 2012 to serve an expert report on Defendant Dr. 

Mathew Alexander, and his service of his expert report via facsimile on October 17, 

2012, was therefore timely.” (Supp. CR 18.) 

On October 31, 2012, Dr. Mathew Alexander filed his motion to dismiss, 

alleging that Plaintiff-Appellee’s Chapter 74 expert report was legally insufficient. (CR

64-129.) Plaintiff-Appellee filed a response on January 10, 2013. (CR 188.) Dr. 

Mathew Alexander served his second motion to dismiss on November 28, 2012, 

addressing the timeliness of Plaintiff-Appellee’s Chapter 74 expert report. (CR 149-

182.) Plaintiff-Appellee filed a response on May 9, 2013, arguing that nothing 

contained in section 74.451(a)’s 120-day deadline required him to serve an expert 

report on Dr. Mathew Alexander before he made him a party to the suit. (CR 204.) 
5

The trial court conducted two hearings on the motions to dismiss—one on July 

17, 2013 and one on January 7, 2015. (2 RR and 3 RR.) Both hearings were limited 

to Defendant-Appellant’s complaints concerning the timeliness of Plaintiff-Appellee’s 

Chapter 74 expert report. (2 RR and 3 RR.) On January 8, 2015, the trial court 

denied Defendant-Appellant’s second motion to dismiss based on the alleged 

untimely service of the report. (CR 401.) This appeal followed. 
6

STANDARDS OF REVIEW

I. The Trial Court’s Denial of Defendant-Appellant’s Second Motion to 

Dismiss is Reviewed for an Abuse of Discretion.

The trial court’s denial of a motion to dismiss for failure to timely file a section 

74.351(a) expert report is reviewed for an abuse of discretion. See Am. Transitional 

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (applying abuse of 

discretion standard in reviewing trial court’s decision regarding the dismissal of a 

claim under Chapter 74); McQuade v. Berry, No. 02-12-00099-CV, 2012 WL 6049012, 

at *2 (Tex. App.—Fort Worth 2012, no pet.) (affirming the trial court’s denial of a 

motion to dismiss based on timeliness challenges after reviewing the decision for an 

abuse of discretion). Under this standard, an appellate court will not reverse a trial 

court’s judgment simply because the appellate court would have decided the matter 

differently. To the contrary, the Court will only reverse the judgment if the trial court 

“acted without any reference to any guiding rules or principles.” Worford v. Stamper, 

801 S.W.2d 108, 109 (Tex. 1990). This deferential standard of review applies even to 

“the trial court’s resolution of the historical facts from conflicting affidavits.” Manzi v. 

State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002) (en banc); see Anderson v. City of

Bessemar, 470 U.S. 546, 574-75 (1985) (“[T]he parties to a case on appeal have already 

been forced to concentrate their energies and resources on persuading the trial judge 

that their account of the facts is a correct one; requiring them to persuade three more 

judges at the appellate level is requiring too much.”). 
7

To the extent resolution of the issues requires interpreting statutes, the court 

applies a de novo standard of review. See Pallares v. Magic Valley Elec. Coop., 267 S.W.3d 

67, 69-70 (Tex. App.—Corpus Christi 2008, pet. denied) (internal citations omitted). 

II. The Trial Court’s Findings of Fact and Conclusions of Law Are 

Reviewed for Factual and Legal Sufficiency of the Evidence.

Courts of appeals review findings of fact for both legal and factual sufficiency. 

See BMC Software Belgium, N.V. v. Marchland, 82 S.W.3d 789, 794 (Tex. 2001). 

Conclusions of law are reviewed de novo. McAllen Police Officers Union v. Tamez, 81 

S.W.3d 401, 404 (Tex. App.—Corpus Christi 2002, pet. dism’d). The appellate court 

will only set aside a factual finding if the evidence supporting the finding is contrary to 

the overwhelming weight of the evidence. See Cameron Cnty Drainage Dist. No. 5 v. 

Gonzales, 69 S.W.3d 820, 825 (Tex. App.—Corpus Christi 2002, no pet.) (citing Jaffe 

Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex. 1993)). The appellate court will not 

substitute its judgment for that of the trial court in evaluating factual matters 

determined by the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). 
8

SUMMARY OF THE ARGUMENT

I.

The trial court correctly denied Defendant-Appellant’s second motion to 

dismiss. The 120-day deadline for serving Dr. Mathew Alexander with an expert 

report under Chapter 74 was triggered by Plaintiff-Appellee’s First Amended Petition, 

which was the first filing where Dr. Mathew Alexander was named as a party and 

where claims were asserted against him. Plaintiff-Appellee therefore had 120-days 

from June 27, 2012—the date that the First Amended Petition was filed—to serve his

expert report on Dr. Mathew Alexander. Because Plaintiff-Appellee served his expert 

report on October 17, 2012—well within that 120-days—the trial court’s dismissal of 

Defendant-Appellant’s second motion to dismiss was proper. 

II. 

The evidence is more than sufficient to support the trial court’s conclusion

that Dr. Mathew Alexander was not a named party to the proceeding until PlaintiffAppellee’s First Amended Petition. Moreover, the legal conclusions that the trial 

court drew from the facts of the case were correct and supported by ample case law. 

Thus, the trial court’s findings of fact numbers 3, 4, 5, and 8 and conclusion of law 

number 18 are legally and factually sufficient. 
9

ARGUMENT

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING 

DEFENDANT-APPELLANT’S SECOND MOTION TO DISMISS.

At the time that this lawsuit was filed and amended, Chapter 74 of the Texas 

Civil Practice & Remedies Code provided that a claimant asserting a health care 

liability claim must, within 120 days following the filing of the original petition, serve 

an expert report and curriculum vitae for each physician or health care provider 

against whom the claim is asserted. Tex. Civ. Prac. & Rem. Code § 74.351(a) (Vernon 

2011).1 If a claimant fails to serve an expert report on the defendant physician or 

health care provider, then, on the motion of the affected physician or health care 

provider, the trial court shall dismiss the claimant’s claim. Tex. Civ. Prac. & Rem. 

Code § 74.351(b) (Vernon 2011). On appeal, Defendant-Appellant does not 

challenge the sufficiency of Plaintiff-Appellee’s expert report; instead, DefendantAppellant challenges the timeliness of Plaintiff-Appellee’s service of his expert report. 

Defendant-Appellant’s attack on the timeliness of Plaintiff-Appellee’s expert report is 

not sustainable as a matter of law because he timely served Dr. Mathew Alexander 

after suing him. 

																																																												 1 In 2013, the Legislature amended section 74.351(a) to require service of the expert report within 

120 days of the defendant’s answer. See Act of May 24, 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. 

Sept. 1, 2013. The original petition was filed in June 2012 and amended later that same month and 

is thus governed by the prior version of the statute, which required service of the expert report 

within 120 days following the filing of the original petition. All references to Chapter 74 contained 

herein refer to the 2011 version of the statute applicable to this suit, unless otherwise noted. 
10

A. Plaintiff-Appellee Timely Served an Expert Report on DefendantAppellant Mathew Alexander within 120 Days of Filing His

Pleading Naming Defendant-Appellant Mathew Alexander as a 

Party.

1. The 120-day deadline to serve an expert report runs from date 

that the Plaintiff first asserted a health care liability claim 

against the Defendant. 

While Texas Civil Practice & Remedies Code Section 74.351(a) mandates that a 

claimant pursuing a health care liability claim serve an expert report on each 

defendant no later than the 120th day after filing the “original” petition, the operative 

pleading for purposes of triggering the 120-day expert report deadline is the pleading 

that first asserts a health care liability claim against the defendant. See Padre Behavioral 

Hlth Sys., LLC v. Chaney, 310 S.W.3d 78 (Tex. App.—Corpus Christi 2010, no pet.) 

(holding that the statutory 120-day period to file a Chapter 74 expert report was 

triggered by the first-filed petition asserting a claim against the defendant physician or

health care provider). Virtually every appellate court—including this Court—that has 

considered the issue has reached the same conclusion. See id.; see also Hayes v. Carroll, 

314 S.W.3d 494, 500 (Tex. App.—Austin 2010, pet. aff’d); Daybreak Comm. Servs., Inc. 

v. Cartrite, 320 S.W.3d 865, 871 (Tex. App.—Amarillo 2010, no pet.); Kingswood Specialty 

Hosp., Ltd. v. Barley, 328 S.W.3d 611, 613 (Tex. App.—Houston [14th Dist.] 2010, pet. 

aff’d); Stroud v. Grubb, 328 S.W.3d 561 (Tex. App.—Houston [1st Dist.] 2010, pet. 

denied); Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404, at *1-3 (Tex. 

App.—San Antonio July 1, 2009, pet. denied) (mem. op.).
11

For example, in Padre Behavioral Health Systems, LLC v. Chaney, this Court held 

that the 120-day period for a patient’s estate to file an expert report in a medical 

malpractice action was triggered by the first-filed petition naming the defendant 

physician or health care provider. Chaney, 310 S.W.3d at 85. To reach that 

conclusion, this Court examined the legislative history behind section 74.351(a) and 

noted that to hold otherwise, “would lead to absurd results: after more than 120 days 

after filing a lawsuit, even if the statute of limitations period had not expired, a 

plaintiff could never add another physician or health care provider as a defendant 

because she would never be able to timely serve an expert report on such a 

defendant.” Chaney, 310 S.W.3d at 85 (citing Osonma, 2009 WL 1099404, at *4). 

Similarly, in Hayes v. Carroll, 314 S.W.3d 494, 500 (Tex. App.—Austin 2010, no 

pet.), the Austin Court of Appeals held that a patient’s amended petition adding 

physicians and nurses as defendants—rather than the initial petition only naming a 

hospital as a defendant—triggered the 120-day period during which the patient was 

required to serve the expert report on the physicians and nurses. The Hayes Court 

reasoned that “[i]f a defendant has not yet been added to a case, there has yet to be a 

lawsuit filed against that defendant.” Id. at 500. The San Antonio Court of Appeals 

has likewise opined that “[s]ection 74.351(a)’s requirement that a plaintiff serve an 

expert report explaining each defendant physician’s or health care provider’s liability 

within 120 days from the filing of the original petition does not necessarily refer to the 

first-filed petition in the lawsuit; it refers to the first filed petition naming that 
12

defendant physician or health care provider as a party to the lawsuit.” Osonma, 2009 

WL 1900404, at *2. 

As the trial court properly found, here, the first pleading to assert claims against 

Defendant-Appellant Mathew Alexander was the First Amended Petition, which was 

filed on June 27, 2012. (Supp. CR 17.) That fact is evident from the face of the 

pleadings themselves.2 Specifically, Plaintiff’s Original Petition did not name Dr. 

Mathew Alexander in the style of the case, CR 7, and, critically, did not assert any 

causes of action against Dr. Mathew Alexander. CR 11-19. It was not until Plaintiff’s 

First Amended Petition, which was filed on June 27, 2012, that Plaintiff-Appellee

named Dr. Mathew Alexander as a party in the style of the case and first asserted 

causes of action against him. CR. 27-34. Because there were no causes of action 

alleged against Dr. Mathew Alexander until June 27, 2012, Plaintiff-Appellee’s expert 

report was not due until October 25, 2012. Plaintiff-Appellee’s service of the expert 

report on Dr. Mathew Alexander on October 17, 2012 was therefore timely. See 

Supp. CR 18; see also Supp. CR 20 (“Plaintiff-Appellee served His Chapter 74 expert 

report on Defendant Dr. Mathew Alexander within the 120-day deadline mandated by 

Texas Civil Practice and Remedies Code Section 74.351(a) because the operative 

																																																												 2 Defendant-Appellant refers the Court to extrinsic evidence outside of the pleadings, such as 

Plaintiff-Appellee’s pre-suit notice letter, to support its claim that Plaintiff-Appellee intended to 

name Dr. Mathew Alexander as a party in the Original Petition. Defendant-Appellant’s Brief at 19. 

This Court does not need to look beyond the pleadings themselves to see that there were no 

healthcare liability claims asserted against Dr. Mathew Alexander until Plaintiff’s First Amended 

Petition. Cf. Mark v. St. Luke’s Episcopal Hosp., 52 Tex. Sup. J 1194 2009 Tex. LEXIS 636 at *12 

(Tex. Aug. 28 2009) (focusing on specific allegation in claimant’s original petition to determine 

whether claims were “health care liability claims” for which 120-day expert was required). 
13

pleading asserting a cause of action against Dr. Mathew Alexander was PlaintiffAppellee’s First Amended Petition.”). 

2. Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) is inapposite 

and, if anything, supports Plaintiff-Appellee’s argument. 

 

Defendant-Appellant relies on Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) for 

the proposition that Dr. Mathew Alexander was named as a “party” to the suit in the 

Original Petition. Defendant-Appellant’s Brief at 18. Such reliance, however, is 

misplaced. In Zanchi v. Lane, the plaintiff, a representative of the decedent’s estate,

sued an anesthesiologist on behalf of the estate for the decedent’s death after 

undergoing a splenectomy. Zanchi, 308 S.W.3d at 376. In the original petition, the 

plaintiff named the anesthesiologist, Zanchi, as a defendant and alleged that Zanchi’s 

medical negligence resulted in the decedent’s death. Id. Although Zanchi was not 

served with process until five months after the original petition was filed, the plaintiff 

mailed his expert report and curriculum vitae to Zanchi at five different locations

within 120 days of filing the original petition. Id. Zanchi moved to dismiss, arguing 

that he did not become a “party” to the lawsuit until he was served with process and 

that the plaintiff therefore failed to serve him within 120 days of filing suit. Id. at 377. 

The Supreme Court of Texas disagreed, determining that “in the context of the 

TMLA [Texas Medical Liability Act], the term ‘party’ means one named in a lawsuit 

and that service of the expert report on Zanchi before he was served with process 

satisfied the TMLA’s expert-report requirement.” Id. 
14

The Texas Supreme Court’s opinion in Zanchi was limited to whether a 

defendant could evade a plaintiff’s proper service of an expert report within 120 days 

of filing suit by claiming he was not a “party” to the lawsuit before he was served with

process. See id. The Zanchi Court never addressed—either directly or indirectly—

whether a plaintiff’s original petition triggered the 120-day deadline for a later-named 

defendant who was not named as a party in the original petition. See id. As discussed 

above, that question has been squarely addressed and answered with a resounding 

“No” by appellate courts throughout Texas. See supra Part I.A.1; see also Chaney, 310 

S.W.3d at 78; Hayes, 314 S.W.3d at 500; Cartrite, 320 S.W.3d at 871; Barley, 328 S.W.3d 

at 613; Stroud, 328 S.W.3d at 561. If Zanchi applies at all, it only serves to support the 

trial court’s denial of Defendant-Appellant’s motion to dismiss because Dr. Mathew 

Alexander was not “named in a lawsuit” until the First Amended Petition was filed. 

See Zanchi, 308 S.W.3d at 377; see also (CR 7, 11-19.)

3. The common law concept of misnomer does not apply. 

Defendant-Appellant contends that Plaintiff-Appellee’s naming of Dr. Lamar 

Alexander, rather than Dr. Mathew Alexander, in his Original Petition is a case of 

“misnomer” not “misidentification” and that “Appellee intended to sue Dr. Mathew 

Alexander, even if he misnamed him in parts of the Original Petition.” DefendantAppellant’s Brief at 20. The only authority Defendant-Appellant cites to support this 

contention either (1) applies in the context of tolling a statute of limitations, or (2) 

does not support its position. 
15

In support of its “misnomer/misidentification” argument, DefendantAppellant cites cases discussing and applying these doctrines in the context of 

determining whether a statute of limitations is tolled. See, e.g., Defendant-Appellant’s 

Brief at 19 (citing Buchinal v. PJ Trailers-Seminole Mgmt. Co., 372 S.W.3d 200, 214 (Tex. 

App.—Texarkana 2012, no pet.); Id. at 21 (citing In re Greater Houston Orthopaedic 

Specialists, Inc., 295 S.W.3d 323, 326 (Tex. 2009). As a general rule, a plaintiff may use 

the doctrine of “misnomer” to avoid limitations by arguing that an amended petition 

“relates back” to the original petition. See Buchinal, 372 S.W.3d at 214. Applying the 

doctrine of misnomer in such instances ensures that “the decisions of the courts of 

appeals turn on substance rather than [a] procedural technicality.” City of San Antonio 

v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992). In this regard, the theory of 

“misnomer” is used as a shield to protect a plaintiff’s cause of action. 

Here, Defendant-Appellant attempts to turn this “shield” into a “sword” by 

arguing that, due to a misnomer, Plaintiff’s First Amended Petition relates back to his

Original Petition and thereby starts the 120-day clock for serving an expert’s report. 

Yet, no authority supports Defendant-Appellant’s use of the concept of 

“misnomer”—which was intended to shield plaintiffs from dismissal when a statute 

of limitations has run—as a sword to compel dismissal in a health care liability claim 

when a defendant was not named in the original petition. 

The cases on which Defendant-Appellant relies are further distinguishable 

because the misnamed party was actually served with the original petition. See In re 
16

Greater Houston Orthopaedic, 295 S.W.2d at 325 (“Courts are flexible in these cases 

because the party is intended to be sued has been served and put on notice that it is 

the intended defendant.”). In fact, in one of the cases cited by Defendant-Appellant,

Union Pacific Corp. v. Legg, 49 S.W.3d 72, 78 (Tex. App.-Austin 2001, no pet.), the court

emphasized that “most important of all, . . . the intended defendant [must be] actually served 

with citation” for the concept of misnomer to apply. (Emphasis in original). Here, 

there is no dispute that Dr. Mathew Alexander was never served with the Original 

Petition. (CR 251.) The reason for that is simple. Dr. Mathew Alexander was never 

named as party defendant in the Original Petition—his name did not appear in the 

style of the case, nor were there any causes of action alleged against him. That is also 

why Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d 812, 816 (Tex. App.—Dallas 2009, 

no pet.) is distinguishable. The Wheeler Court refused to apply the doctrine of 

misidentification to the service of an expert report when a plaintiff originally sued 

“Mesquite Community Hospital a/k/a Woman’s Health Hospital at Dallas Regional 

Medical Center” where the hospital’s name was “Mesquite Community Hospital 

a/k/a/ Lone Star HMA, L.P. d/b/a Women’s Hospital at Dallas Regional Medical 

Center.” There, the Dallas Court of Appeals specifically noted that all petitions listed 

the defendants “in their common or assumed names.” Id. at 814. 

Unlike Wheeler, Dr. Mathew Alexander was not named until the First Amended 

Petition. This case is therefore more akin to Daybreak Community Services, Inc. v. Cartrite, 

320 S.W.3d 865, (Tex. App.—Amarillo 2010, no pet.) and Stroud v. Grubb, 328 S.W.3d 
17

561 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). In the former, the plaintiff 

argued that her misidentification of a health care provider entitled her to a new 120-

day expert report deadline under section 74.351(a). Cartrite, 320 S.W.3d at 866. The 

trial court found that the plaintiff’s misidentification of the defendant entitled her to a 

new 120-day deadline. Id. The court of appeals agreed and affirmed the trial court’s 

denial of the defendant’s motion to dismiss. Id. In the latter, the Houston Court of 

Appeals distinguished Wheeler, asserting that the defendant in that case was not named 

until the fourth amended petition and the 120-day deadline thus did not start to run 

until that pleading was filed. Grubb, 328 S.W.3d at 565 n.1. Like the defendants in 

Cartrite and Stroud, Dr. Mathew Alexander was not named as a party until PlaintiffAppellee amended his petition. The amended petition triggered the start of the 120-

day deadline to serve Plaintiff-Appellee’s expert report and his report was therefore 

timely. 

B. Plaintiff-Appellee’s Service of His Expert Report was Timely Even 

Assuming the 120-Day Deadline was Triggered by the Filing of 

Plaintiff’s Original Petition. 

Even if the Court were to accept the argument that the operative date for 

beginning the 120-day period was June 19th, 2012—the date that Plaintiff’s Original 

Petition naming “Lamar Alexander” as opposed to “Mathew Alexander,” was filed—

Plaintiff-Appellee still served the expert report on a timely basis. Chapter 74 of the 

Texas Civil Practice and Remedies Code requires a claimant to “serve” the expert 
18

report “on each party or the party’s attorney,” but does not define how a plaintiff 

must serve an expert report on a defendant. Tex. Civ. Prac. & Rem. Code § 74.351(a). 

In Stockton v. Offenbach, 336 S.W.3d 610, 615-16 (Tex. 2011), the Supreme Court 

of Texas examined the expert report service requirements under Chapter 74. In 

Stockton, the plaintiff served his report on the doctor four months late as he had 

difficulty locating the doctor. 336 S.W.3d at 616. The plaintiff argued that if the 

service requirements in Chapter 74 incorporated the requirements of Texas Rule of 

Civil Procedure 21a, they should also incorporate the due diligence concepts that have 

attached to that rule. Id. at 615. The defendant responded that an extension for the 

service of an expert report is appropriate only under two circumstances, “by written 

agreement” or by “court order to cure deficiencies.” Id. at 616. In response, the 

Supreme Court of Texas determined that the term “served” is not defined under 

Chapter 74, but that its meaning under common law includes the notion of due 

diligence. Id. The Stockton Court ultimately found that the record in that case 

established a lack of due diligence as a matter of law because the plaintiff failed to 

serve the expert report for four months, but it impliedly suggested that it would allow 

an exception to the strict 120-day deadline under different circumstances. Id. at 616-

17. 

In Tenet Hospitals Limited v. Rivera, 445 S.W.3d 698, 704-05 (Tex. 2014), the 

Supreme Court of Texas reviewed several decisions on the doctrine of due diligence. 

Specifically, the Court noted that it had previously ruled that delays of four months
19

(Stockton), seventeen months (Shah v. Moss, 67 S.W.3d 836, 847 (Tex. 2001)), and 

twenty-two months (Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 785 

(Tex. 2007)), revealed a lack of due diligence. Whatever due diligence is from a time 

standpoint, it would certainly seem that a delay of less than two hours would still be 

considered within the realm of due diligence. 

Plaintiff-Appellee acknowledges Defendant-Appellant’s reliance on Nexion 

Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, 

no pet.) as requiring this Court to strictly apply Rule 21a to Chapter 74’s expert report 

service requirement. However, the plaintiffs in Nexion Health never raised the due 

diligence argument. Additionally, the Nexion Health decision was filed prior to the 

Supreme Court of Texas’s opinion in Stockton. Compare Nexion Health, 335 S.W.3d at 

716 (opinion filed on Feb. 10, 2011) with Stockton, 336 S.W.3d at 610 (opinion filed 

Feb. 25, 2011). Lastly, applying the due diligence exception is consistent with the 

legislative intent in amending Chapter 74 and with the Texas Rules of Civil Procedure.

First, applying the due diligence exception in this case would not frustrate the 

stated purpose of the Legislature’s amendments to Chapter 74. The amendments 

were designed to “reduce [health care liability] claims, but to do so in a manner that 

will not unduly restrict a claimant’s rights any more than necessary to deal with the health care 

crisis.” Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007) (emphasis added). 

Second, as stated in Texas Rule of Civil Procedure 1:
20

The proper objective of the rules of civil procedure is to obtain a just, 

fair, equitable and impartial adjudication of the rights of litigants . . . to 

the end that this objective may be attained with as great expedition and 

dispatch and the least expense both to the litigants and to the state as 

may be practicable, these rules shall be given a liberal construction. 

The just, equitable, and fair result would be to apply the due diligence concepts 

engrafted into Rule 21a with regard to Plaintiff-Appellee’s service of his expert report 

on Dr. Mathew Alexander. 

II. THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO SUPPORT 

THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW.

The Defendant-Appellant argues in passing “[t]he trial court erroneously 

concluded that Appellee’s expert report was timely served; findings of fact numbers 3, 

4, 5, and 8 and conclusion of law number 18 are supported by legally and factually 

insufficient evidence, and conclusion of law number 18 is legally erroneous.” 

Defendant-Appellants Brief at 25. This is simply not so. The trial court correctly 

concluded, based upon its review of the pleadings filed in the matter and its review of 

the law that Dr. Mathew Alexander was not a named party to Plaintiff-Appellee’s 

Original Petition. 

Notably, a finding of fact by the trial court, not assailed on appeal, is entitled to 

the same deference as a jury’s finding and is binding on the reviewing court, provided

the finding is authorized by law. See, e.g., Puri v. Mansukhani, 973 S.W.2d 701 (Tex. 

App.—Houston [14th Dist.] 1998). As explained in great detail above, the trial 

court’s legal conclusion is legally sound. See supra Part X. The trial court’s factual 
21

conclusions, based upon the judicial admissions of the parties in the operative 

pleadings, are not against the great weight and preponderance of the evidence as to be 

manifestly unjust. See Puri, 973 S.W.2d at 701; see also Schindler v. Schindler, 119 S.W.3d 

923, 929 (Tex. App.—Dallas 2003, pet. denied) (“[W]e will sustain the findings if 

there is sufficient evidence to support them, and we will review the legal conclusions 

drawn from the facts found to determine their correctness.”). 

Specifically, Mr. Lomas did not name Dr. Mathew Alexander, Individually and 

as President of South Texas Brain and Spine Center (“Defendant-Appellant”) as a 

party to the suit in his Original Petition. Plaintiff-Appellee did not assert a cause of 

action against Dr. Mathew Alexander in his Original Petition nor did PlaintiffAppellee list Dr. Mathew Alexander as a defendant in the style of the case for his

Original petition. (Supp. CR 16.) Mr. Lomas’ First Amended Petition, filed on June 

27, 2012, is the first to have alleged facts and causes of action against Dr. Mathew 

Alexander and list him as a defendant in the style of the case. (Supp. CR 17.) Dr. 

Mathew Alexander was never served with the Original Petition, he was served only 

with the First Amended Petition where he was named as a party. (Supp. CR 17.) The

evidence therefore supports the trial court’s conclusion that “June 27, 2012 was the 

first time Plaintiff sued and brought a cause of action against Defendant Mathew 

Alexander.” (Supp. CR 17.) 
22

CONCLUSION

For the foregoing reasons, Plaintiff-Appellee respectfully requests that this 

Court affirm the trial court’s decision to deny Defendant-Appellant’s second motion 

to dismiss. 

Respectfully Submitted,

/s/Marion M. Reilly

Robert C. Hilliard

State Bar No. 09677700

bobh@hmglawfirm.com

Catherine D. Tobin

State Bar No. 24013642

catherine@hmglawfirm.com

John B. Martinez

State Bar No. 24010212

john@hmglawfirm.com

T. Christopher Pinedo

State Bar No. 00788935

cpinedo@hmglawfirm.com

Marion M. Reilly

State Bar No. 24079195

marion@hmglawfirm.com

HILLIARD MUÑOZ GONZALES LLP

719 S. Shoreline Boulevard, Suite 500

Corpus Christi, Texas 78401

Telephone No.: (361) 882-1612

Facsimile No.: (361) 882-3015

ATTORNEYS FOR PLAINTIFF-APPELLEE
23

RULE 9.4(I) CERTIFICATION

In compliance with the Texas Rules of Appellate Procedure 9.4(i)(3), I certify 

that the number of words in this brief, excluding those matters listed in Rule 9.4(i)(1), 

is 5,524. 

/s/ Marion M. Reilly

Marion M. Reilly

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Plaintiff-Appellee’s Brief was served via 

the electronic filing system on the following:

Diana L. Faust 

Cooper & Scully, P.C.

900 Jackson St. #100

Dallas, TX 75202

Richard Wager

Patterson and Wagner

7550 I-10 West, Suite 500

San Antonio, TX 78229

Mr. Richard C. Woolsey

Woolsey and Associates

555 N. Carancahua, Suite 1101

Corpus Christi, Texas 78401

/s/ Marion M. Reilly

Marion M. Reilly